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tv   [untitled]    July 4, 2014 1:00am-1:31am PDT

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so we can hear what kind of advise you're going to get since you took no action to authorize mr. sin country to file this case in superior court he did that without our explicit permission. >> i want to read i something from the brown act section 54946.9. but i want to mention after the last meeting i put in a records request inform mr. sincroy that was provided to the commissioners before the placing last meeting i got copies of everything that's listed but one was withheld because of the subject to the attorney-client privilege asserting that the attorney-client privilege on the material that was provided to
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the commissioners afforded. this is what 549.6.9 says for purposes of this chapter all expressions of the lawyer client privilege other than those provided in this section are here we go abrogated. this section is the inclusive session of the attorney-client privilege for the privileges of having the closed session sessions but it says that anything that you get before the closed session meeting is a public record flu disclosureable if >> lawyers don't agree i'll be happy to have the debate. so let's suppose there is a
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decision from the court of appeals you win. it's going to go to the supreme court i think you should ask your lawyers what their clans are because i will ask mine. but if you think about all of the work that's been done and the money spent by me and by you representing the taxpayers so far and this is the first meeting you're ready to talk about this case. this is going to be huge. in costs whether i think i think or you win i think you should keep in mind. the last thing that's important and it's about time i came to grips our bylaws say you'll comply with the sunshine ordinance. what happened to that inclines what's it going to do to the way
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your conducting our business when it comes to the referrals and the task force. you're going to overturn them every time the respondent relied or the complainant relied on the nowlogically provision in the sunshine ordinance? i don't think so should think about it and hard >> good evening hope johnson i want to urge you to hold this in open session that have we've gone on for many years longer than that 4 years around the ethics commission hand to hand the sunshine complaints what i was on a task force the board of supervisors told us we violated
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the sunshine ordinance but this commission has memos that says our referrals from the sunshine task force wore not valid our finding were not valeted even though none of you heard it it was not heard or voted on so the charter so mr. sincroy writes them and the city attorney vetted they were never voted on by the ethics commission itself so the staff was passing those and it happened for years. and i appreciate that the commissioners did a roof work to try to bring that around to change it so there was an open meeting about the sunshine complaint i know your working hard but that's public policy and in the administrator code it's a black letter law but
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voted on by the volunteered they had an opportunity to see it was one small section of the attorney-client privilege they're dealing with and the city attorney's office represents the people too the departments belong to the people. we don't want the city attorney's office to be able to tell the departments how to avoid giving records to the public the records are presumed discloseable it's at the responsibility of the people that think they should not be disclosed it should fall under an exemption so this is a public policy discussion. that needs to be in open session people need to be able to go back and refer to it the general public shouldn't have to will i i rely on what the commissioners say. it's frustrating for us to say
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that over and over again, i had to hear it for two years at the 5 and 6 hour meetings because there was not openness about how the sunshine ordinance task force reversals were handled when 33 it came to enforcement it went on and on and only what way to stop it is to show how your deliberating air there's 3 possible things to do but i welcome my fellow commissioners and city attorney and staff. one option is to receive from mr. sincroy a background on the case the president of the united states what's been happening and going on no attorney advise. i think the second option to do that in open section and go into closed session where we can
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solicit advise from starz and the third option go into closed session i think and get the advise of the city attorney. thoughts from the staff or fellow commissioners? >> sounds like all right. to me. city attorney. i think those all sounds like options to consider >> i think those are all options you can consider. >> well, i supposed there's another option to have a public hearing not limited as you limited the public portion of it. >> i supposition there's an option we can wave the attorney-client privilege and have the advice in open section
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i would strongly oppose waving the take advantage attorney-client privilege that's at issue. >> did you say oppose. >> i would oppose it. >> i'm with commissioner renne i mean we've talked about this long enough and everybody seems to want including, you know, the principles in this to have an open hearing let's have an open hearing. now as to the attorney-client privilege with legal advice i'm prepared to take our advise
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commissioner hur's >> i appreciate you're using the mike. >> okay. so maybe i'll ask it this way is there a motion to receive from the staff an upgrade on the case in open session but then to move into closed session for any attorney-client privilege advise that we seek from the city attorney? commissioner hayon >> i'll second that. yeah, i'll agree to that. >> does that is there a motion to do so? >> so moved. is there a second?
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>> i'll second it. >> all in favor, say i. >> i. >> (inaudible). >> i think you've had public comment on whether or not to go into closed session there's no reason for a second round of public comment. >> the city attorney has advised we've already had. it says on every motion that's the motion before we had a discussion of the agenda >> including whether to meet in closed session. did we just vote? okay >> okay. we are going to - >> why don't we do the public discussion so those folks don't have to wait until we do the
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other stuff. >> does the public prefer we do that? >> yeah. >> let's do the public session on item 6. gentlemen you want to give us some background and status on the matter that's pending >> this case went to the court of appeals earlier this year. there was a certain amount of time when briefs were submitted by both parties back and forth oral argument were heard on may 1st and a decision due by the first week in august. the basis for this agenda item was at some point commissioner keane requested for may the briefs filed pertaining to the appeal i offered him all the documents related to the can i
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he didn't want them and requested that we calendar a decision on those briefs that he asked for and that i sent him those are the briefs you've received as part of the agenda packet for this meeting i'm not sure what he wants to discuss but wanted to have a general discussion about that. after the court of appeals releases its decision as mr. gross man alluded to there's a certain amount of time when the party that doesn't win the case can file with the california supreme court this case can remain pending e pending for a matter of months to come
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>> questions from commissioners? any status or background of the case? i have a question about what the supreme court judge did. did he review the in camera the underlying documents? >> no. >> whaes was it stipulated that the documents were attorney-client privilege and the issue was whether the sunshine ordinance allowed disclosure of the attorney-client privilege in the recorded documents. >> it was not stipulated there's an assertion of the privilege do you - there was an assertion of the privilege and the question whether or not the provision of the sunshine ordinance is valid and like in the city charter. >> did the judge find that the
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- because it doesn't matter in his view that the ordinance allowed for disclosures whether or not it's privileged he if reach the issue of whether or not the documents are privileged. >> that's right. the judge did not address the issue of the provision of the sunshine ordinance is valid or invalid in light of the charter both parties agreed that issue is before the judge >> that's not my question my question is did he determine that he didn't need to review the documents in camera because it doesn't matter once the documents are privileged under the ordinances it has to be disclosed. >> oh, that's right. >> any other questions?
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>> as i understand the that everything that was presented toys prior to the may 28th hearing and again packet to us here everything was made available for the public with the exception of one document i assume that one document is prepared by city attorney's office. that's right >> your asserting that was attorney-client privilege. >> the memoranda. >> the attorney-client privilege. >> the communication as a product yes. >> anything else? okay. so now i think we should
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go into closed session on items 4 through 6. and we will then invite the public of when we've entered the closed session >> we should do public comment and okay. let's. >> i on on agenda item 6 it would have public comment. >> on agenda 6 relating 0 the discussion okay. let's have public comment then. >> boy i tell you a you guys are a piece of work. i don't think whoa whether or not to assume that's the kind of discussion when you go into the back you ask the city attorney a couple of questions and go into there are inform 45 minutes or an hour i have the feeling that's the type of discussion you have in closed session.
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i'll say this you're not honest people. and you can say over and over over and over again how you want to be open and helicopter this is about the fact you don't want to disclose things to the pun how you handle sunshine and the brown act and other issues recommended to open government. and you don't want anyone in the public to know what the city attorney is advising you to do or not to do. you know, very frankly if you were an honest people you'll say we don't think it's appropriate to have this and that done because of this reason but you don't you go into a closed room to have a discussion and say anything you want and tell me the public well, we decided and you have to live with that. very frankly, i think especially the two of you lawyers if you had a client and was on this end
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of those procedures you'd be raising hell and headed to superior court in the flash of a yeah. whatever. you know, very frankly it's in align to sit here month after month and sacrificing every action belies that. you hide as much as >> frank herbert says you know politics is the appearance of being open and hiding as much as possible you come in here and saying you're open and honest we just had an discussion about mr. syncountries case you didn't say a darn thing why was this on the
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agenda you didn't discuss anything except you wanted to discuss you're going to go into closed session and discuss a bunch of other stuff. last month you were making those idiot, of course, comments about trying to hide stuff i know you are. i know you have people like mr. sincroy i'm one of the parties and will take a case and schedule it after i leave the state and hear it before i come back and you ignore me. >> i just tells us we're going to be asking advise we're not hiding it we're telling you that. >> i'm supposed to building you're here discussing whether or not we should go into closed session if donates the extent of
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the discussion why did you need to discuss going into closed session about any of it. >> in some ways i am impressed you think their various things to be talking about beyond the advice of the city attorney. >> mr. shaw. >> thank you commissioner hur. >> i think you know of my website wwwstop it's opening all one word i've read everything brief filed from supreme court just before the oral arguments. he went i would read a filing by the esteemed dennis herrera's staff i was appalled.
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in fact, i was so appalled i wrote a really long analysis entitled something about fairlyy dust coming out of the city attorney's shop. you should read that. every word of what i wrote. because mr. gross man's lawyer michael absolutely obsoleted deputy city attorney andrew shins garbage. there's nothing in the city chart that protects city attorney i mean attorney-client privilege not a peep.
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that was the root of mr. gross man's case the superior court was right to order the immediate release of the 24 documents withheld from mr. gross man should not have dragged on for two years before arriving as that hearing tonight and you're going to go into closed session god, only knows what. if the commission has too long of a history giving us reasons not to building you. mr. gross man should prevail other than the merits of his case and the appellate court should get over itself trying to hold attorney-client privilege
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immulberry it's not when it comes to narrow area of law focused on public utilities access. mr. gross man is not waging a battle to get at some kind of documents that will give him a road map he's after public records what part of that don't you get? >> it somewhat baffles me what you think you're going to do in closed session to be honest with you. you can't assert our attorney-client privilege because mr. sincroy did it a year and a half ago and steadfastly continued to do that with the support of the city attorney. so you can't undo that and do a
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redo unless you've not seen the papers and look at them and say there's no big deal theirs nothing toxic so let the trouble maker have titus has a way. that's one problem the next one the provision in the brown act which requires that i see every record that was provided to the commission before this meeting on this item if i had a guess there was some attorney-client privilege material in it. if i'm wrong then hopefully what's in here is all i've provided but if i'm right you have the same problem a month ago which is the only place you
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can assert the attorney-client privilege is in a closed session there's a reason for that because the public is entitled to everything that can possible see that you see except what's disclosed in a closed session. i really have a problem that you know, i practice law a long time. and i've dealt with a lot of people but i don't understand con don something that's costing the taxpayers of this city a ton of motorbike long time ago it cost 25 thousand if i win this time you can imagine when i filed my request for the records mr. sincroy can could have said we're going to have our attorney-client privilege that
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was in october of 2012. october of 2012. and you know what happened since then i don't have to repeat it. thank you. >> good evening commissioners hope johnson. i hope the attorney-client privilege section of the sunshine ordinance the section it addresses the attorney-client privilege that we're fighting over is not about an investigation not about protecting some individuals right to privacy if there isn't something found it's about turning over the ethics commission it should be made clear maybe small business will watch this it should be made clear that you want to talk about in closed session is recommend to how the ethics commission is going to enforce
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violations of the sunshine and the california records act so the sunshine ordinance specifically says that those kinds of communications between the lawyers and the commissioners are not privileged we don't want them to the privileged the public didn't want that. and then the superior court judge agreed without having to look at the documents is nearby if you go into the closed session and it's found again that the superior court finding was correct our violating the sunshine ordinance by going into closed session. this isn't about i don't understand why advise from the city attorney about how to go enforce sunshine complaints or drafts is privileged why would the public not have access to
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those it didn't makes sense >> ms. johnson at the risk of beating my head against the wall this is sort of the way i see it there's an argument if the documents that mr. engross man should be turning over i understand that i understand what the superior court did the closed session we're talking about is to discuss pending litigation no matter what the court decides about the documents it has nothing to do because the litigation and we're litigants can talk about our litigation whether it's about documents. >> what preponderance of the evidence litigation is it about. >> it's the case been identified. i want to make it clear >> the case that's identified is over. >> that's - >> the ruling is standing.
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>> what we're doing right now is related to closed session. >> so you're saying its pending litigation in case you have to file a supreme court ruling. >> thank you. >> o session. >> okay. we're going back in open session. we will take the items that we decided in order first item 4 >> on item had the ethics commission announces that it is reached a stipulation with claudine changing that agrees that pay $9,000 for the campaign code that will be posted open
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the ethics commission website tomorrow. >> item 5. on its meeting of june 23rd in the matters of the ethics commission complaint the ethics commission made a draw your attention there's probable cause to building the following violation of the conduct code and the response committed the them one violation of the conduct code subsection for failing to include a disclosure side our an hang and one conduct code subsection for failing to include a disclosure section type size on a door hanger and each commissioner who participated must certificate on the record that he or she